Naomi’s £3,500 damages for Daily Mirror drug rehabilitation revelations underlines another threat for ads making unauthorised celebrity references.
Who: Naomi Campbell and Mirror Group Newspapers Limited
When: March/May 2002
Where: Queen's Bench Division of the High Court, London
In May 2002 Mirror Group Newspapers (“MGN”) announced its intention to appeal against the March 2002 verdict of the court in Naomi Campbell's action against MGN over articles it published relating to treatment she was undergoing for drug addiction. In the meantime another aspect of the high profile trial has gone relatively unnoticed. This is the historic first ever award of damages in respect of a breach of the Data Protection Act 1998. Admittedly the award of £2,500 (before the additional £1,000 for aggravated damages arising out of further articles on the topic published by MGN) was also in respect of breach of confidence, but the fact remains that distress, embarrassment and anxiety caused by abuse of personal data now crops up on the radar for the first time as a trigger for a court damages award.
Why this matters:
Such a development will not have gone unnoticed by those representing personalities who might be used in advertising without their permission. "Personal data" caught by the Data Protection Act 1998 and all its controls is defined as any information capable of identifying an individual. Any entity that holds such information, in electronic or any other form, must comply with the 1998 Act and holding a photograph of a personality with a view to using it in an advertisement or the name of that individual printed on paper or on a computer, in for example internal emails, with a view to using it in copy, is as much use of personal data as holding an individual's name and address in a mailing list.
Historically the preferred cause of action in UK cases where personalities have complained over misuse of their image in advertising is "passing off". However, this is not necessarily an easy civil wrong to prove. Moreover, even if a case in passing off is proved, cases such as the recent action involving Eddie Irvine and TalkSport Radio (see previous article on marketinglaw) show that at £2,000, the damages likely to be awarded for passing off are not necessarily going to be much greater than any sum which a court might award for breach of the Data Protection Act.
Where an advertiser or its agency holds information about a personality with a view to using him or her in advertising without their consent, it is difficult to see that there will be any defence to a Data Protection Act infringement complaint, and if the personality can also show "distress, embarrassment and anxiety", perhaps because of the strain put on their existing contractual arrangements with other advertisers, by the unauthorised use of their name or image in advertising, the Data Protection Act claim may be easier to prove than one in passing off.